Siegele v. Des Moines Mut. Hail Ins. Ass'n

• Decision Date: 03 October 1911
• Citation: 132 N.W. 697,28 S.D. 142
• Parties: SIEGELE v. DES MOINES MUT. HAIL INS. ASS'N.
• Court: South Dakota Supreme Court

132 N.W. 697

28 S.D. 142

SIEGELE v. DES MOINES MUT. HAIL INS. ASS'N.

Supreme Court of South Dakota

October 3, 1911

Appeal from Circuit Court, Campbell County; J. H. Bottum, Judge.

Action by William S. Siegele, as administrator of the estate of Christian Bauer, deceased, against the Des Moines Mutual Hail Insurance Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Hall Roddle & Purdy, for appellant.

Theodore J. P. Giedt and James M. Brown, for respondent.

WHITING J.

This action was brought to recover a balance of $525 claimed to be due upon a hail insurance policy. Verdict and judgment were for plaintiff; a new trial was denied, and defendant appealed from such judgment and from the order denying a new trial.

The main question for discussion is whether or not there was an accord and satisfaction barring the recovery of the $525. A dispute arose between the insurance company and the assured in relation to the adjustment that was made of the loss. No question arose but what the loss was adjusted by the assured and an authorized adjuster sent by the company. The company claimed the loss was adjusted at $400, and the assured claimed that it was adjusted at $925. Under such circumstances, the company wrote the policy holder, and inclosed a check, which, with a balance due the company for premium, amounted to $400. The check recited on its face "This check accepted as payment in full for all claims to date." The policy holder cashed this check at his local bank, and, in doing so, he indorsed same: "Accepted in part payment of loss by payee. Chris Bauer." The jury evidently found that the loss was adjusted at $925. It is unnecessary to review the testimony in full; it was ample to sustain such a finding.

The appellant contends that, by accepting and cashing the check conditioned as such check was, the policy holder satisfied the debt, whether it was $400 or $925. The respondent contends that, regardless of the condition attempted to be attached to the check, the payee had a right and the power to qualify his acceptance of the check, and receive same in part payment; and respondent further contends that, even if the check had been cashed without any attempt to qualify its acceptance, the acceptance and cashing of such check would not have amounted to an accord and satisfaction, as there was absolutely no consideration therefor. The respondent is clearly correct in this last...